Intelligence Law School - Course 1: Lesson 4.7.3 Title 44: Records Management and Retention


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LESSON 4: STATUTORY LAW


4.7 General Management Statutes (U.S. Code Titles 5 and 44)


4.7.3 Title 44: Records Management and Retention


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Annotated Lecture Transcript

4.7.3 Title 44: Records Management and Retention

Title 5 is the primary location of most general management statutes that govern federal agencies across the board; however, it’s not the only title of the U.S. Code with relevant general management statutes.

Not by a longshot.

There are scattered provisions in many other Titles.

 

Title 44, for example, contains various statutes related to public printing and documents, and contains a number of statutes related to records management and retention that are relevant to intelligence law.

Most of the Federal Records Act of 1950 and other relevant statutes like the Presidential Records Act of 1978 are codified primarily in Title 44.

There are a few exemptions relevant to certain intelligence agencies contained in some statutes, but in the absence of such an exemption these statutes apply to intelligence agencies just like everyone else.

 

Ø  The Federal Register Act of 1935: The Federal Register Act of 1935 mandated that all Presidential and agency rules of general applicability and legal effect[1] be published in the Federal Register so that they are widely disseminated and freely available for public inspection.[2]

o   This was one of the earliest major moves toward transparency in federal governance that is still in effect to this day.

o   The bulk of the Federal Register Act is codified in Title 44 as Chapter 15.[3]

o    

Ø  The Federal Records Act of 1950: The Federal Records Act of 1950 formalized many the document retention requirements and established some of the most important administrative powers of the Archivist of the United States necessary to ensure compliance with federal record keeping requirements.[4]

Ø   

Ø  The Presidential Records Act of 1978: Chapter 22 of Title 44 contains the Presidential Records Act of 1978.[5]

o   The act was passed in the aftermath of the Watergate scandal. President Nixon’s documents and records were seized and held in federal custody after Congress passed the Presidential Recordings and Materials Preservation Act of 1974.[6]

o   After this unpleasantness, Congress decided to formalize the process so future Presidents would never again presume to control documents of national historical significance produced during their tenure.

o   The Presidential Records Act made Presidential documents federal property and placed their care and maintenance in the hands of the Archivist of the United States after a President’s tenure concludes.[7]

o   The Act took effect on January 20, 1981, after the conclusion of the presidency of Jimmy Carter.

o    

Ø  Chapter 31: Agency Records Retention and Maintenance: Chapter 31 contains more provisions from the Federal Records Act of 1950.[8]

o   Specifically, Chapter 31 contains provisions requiring the heads of federal agencies to establish and maintain a system for maintaining agency records.[9]

o   Perhaps most interesting is Section 3106, which requires the head of each Federal agency to notify the Archivist of any “actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention […]”.[10]

o   Then, with the assistance of the Archivist, the agency head must “initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody.”[11]

o   If the agency head doesn’t initiate action through the Attorney General’s office, the Archivist must do it himself and notify Congress what has happened.[12]

o   Destruction of agency documents can be pretty serious business.

 

Footnotes

[1] See 1 C.F.R. § 1.1 (1988) (defining rules of “general applicability and legal effect" to include “any document issued under proper authority prescribing a penalty or course of conduct, conferring a right, privilege, authority, or immunity, or imposing an obligation, and relevant or applicable to the general public, members of a class, or persons in a locality, as distinguished from named individuals or organizations.”).

[2] Federal Register Act, 44 U.S.C. § 1505 (2010) ("Documents to be published in Federal Register: (a) Proclamations and Executive Orders; documents having general applicability and legal effect; documents required to be published by Congress.  There shall be published in the Federal Register— (1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof; (2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and (3) documents or classes of documents that may be required so to be published by Act of Congress. For the purposes of this chapter [44 U.S.C. §§ 1501 et seq.] every document or order which prescribes a penalty has general applicability and legal effect. (b) Documents authorized to be published by regulations; comments and news items excluded.  In addition to the foregoing there shall also be published in the Federal Register other documents or classes of documents authorized to be published by regulations prescribed under this chapter [44 U.S.C. §§ 1501 et seq.] with the approval of the President, but comments or news items of any character may not be published in the Federal Register."); see also Congressional Research Serv., General Management Laws: A Compendium, § I(A), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The Federal Register Act was originally legislated in 1935 (49 Stat. 500) to establish accountability and publication arrangements for presidential proclamations and executive orders and for federal agency rules and regulations. The centerpiece of the resulting system is the Federal Register, an executive gazette produced by the Office of the Federal Register of the National Archives and Records Administration. It is printed by the Government Printing Office and lately has been available, as well, in electronic formats (online and via CD-ROM).”) (internal footnotes omitted).

[3] Federal Register Act of 1935, 44 U.S.C. § 1505 (2010) ("Documents to be published in Federal Register: (a) Proclamations and Executive Orders; documents having general applicability and legal effect; documents required to be published by Congress.  There shall be published in the Federal Register— (1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof; (2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and (3) documents or classes of documents that may be required so to be published by Act of Congress. For the purposes of this chapter [44 U.S.C. §§ 1501 et seq.] every document or order which prescribes a penalty has general applicability and legal effect. (b) Documents authorized to be published by regulations; comments and news items excluded.  In addition to the foregoing there shall also be published in the Federal Register other documents or classes of documents authorized to be published by regulations prescribed under this chapter [44 U.S.C. §§ 1501 et seq.] with the approval of the President, but comments or news items of any character may not be published in the Federal Register."); see also Congressional Research Serv., General Management Laws: A Compendium, § I(A), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The cumulative and operative authority of the Federal Register Act may be found in Chapter 15 of Title 44, United States Code.”).

[4] See Congressional Research Serv., General Management Laws: A Compendium, § I(C), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The Federal Records Act of 1950 (64 Stat. 583) was another milestone.  While it is most often remembered for its placement of the Archivist and the National Archives under the authority of the Administrator of the General Services Administration, among the statute’s important innovations were: creation of the National Historical Publications Commission to “make plans, estimates, and recommendations for such historical works and collections of sources as it deems appropriate for printing or otherwise recording at the public expense ... [and to] cooperate with and encourage both governmental and nongovernmental institutions, societies, and individuals in collecting and preserving and, when it deems such action to be desirable, in editing and publishing the papers of outstanding citizens of the United States and such other documents as may be important for an understanding and appreciation of the history of the United States” (44 U.S.C. §§ 2501-2506); authorizing the analysis, development, promotion, and coordination of standards, procedures, and techniques “designed to improve the management of records, to insure the maintenance and security of records deemed appropriate for preservation, and to facilitate the segregation and disposal of records of temporary value,” and other related actions (44 U.S.C. §§ 2904-2906); authorizing the establishment, maintenance, and operation of records centers “for the storage, processing, and servicing of records for Federal agencies pending their deposit with the National Archives of the United States or their disposition in any other manner authorized by law” (44 U.S.C. § 2907); prescribing the records management responsibilities of agency heads (44 U.S.C. §§ 3101-3107); and prescribing archival administration responsibilities for the deposit of federal agency and congressional records “determined by the Archivist to have sufficient historical or other value to warrant their continued preservation by the United States Government” in the National Archives, and other related actions (44 U.S.C. §§ 21072111). The provisions of the Federal Records Act and those of subsequent records management statutes are largely codified in chapters of Title 44 of the United States Code.”) (internal footnotes omitted).

[5] See Congressional Research Serv., General Management Laws: A Compendium, § I(C), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Chapter 22 contains the provisions of the Presidential Records Act of 1978 (92 Stat. 2523), which marked a major change in federal policy on the custody and preservation of presidential records.”).

[6] 88 Stat. 1695; see also Congressional Research Serv., General Management Laws: A Compendium, § I(C), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“As a consequence of the Watergate incident and related matters, the official papers and records of President Richard Nixon were placed under federal custody by specially legislated arrangements — the Presidential Recordings and Materials Preservation Act of 1974 (88 Stat. 1695).  This statute requires that these materials remain in Washington, DC, where they are maintained under the supervision of the Archivist.  Thus, Nixon neither could take his presidential records and documents with him when he left office, nor could place them in a presidential library outside the nation’s capital. This 1974 statute also created the temporary National Study Commission on Records and Documents of Federal Officials (88 Stat. 1698).  The panel was tasked “to study problems and questions with respect to the control, disposition, and preservation of records and documents produced by on behalf of Federal officials, with a view toward the development of appropriate legislative recommendations and other recommendations regarding appropriate rules and procedures with respect to such control, disposition, and preservation.”  Its final report was issued in March 1977. [U.S. National Study Commission on Records and Documents of Federal Officials,  Final Report of the National Study Commission on Records and Documents of Federal Officials (Washington: GPO, 1977).  Also see Anna Kasten Nelson, “The Public Documents Commission: Politics and Presidential Records,” Government Publications Review, vol. 9, Sept./Oct. 1982, pp. 431-451.]”) (some internal footnotes omitted).

[7] See Congressional Research Serv., General Management Laws: A Compendium, § I(C), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Responding partly to some of the commission’s recommendations, Congress legislated the Presidential Records Act in 1978.  After defining “presidential records,” the statute specifies that all such materials created on or after January 20, 1981, are subject to its provisions. It effectively made presidential records federal property, to remain under the custody and control of the Archivist when each incumbent President left the White House. Jimmy Carter was the last occupant of the Oval Office who could freely take away his records and papers.”).

[8] See Congressional Research Serv., General Management Laws: A Compendium, § I(C), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Chapter 31, also containing core provisions from the Federal Records Act, prescribes the records management responsibilities of the federal agencies, including the general duties of agency heads, the requirement to establish and maintain “an active, continuing program for the economical and efficient management of the records of the agency,” and certain related procedural matters.”).

[9] 44 U.S.C. § 3101 (“Records management by agency heads; general duties: The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.”).

[10] 44 U.S.C. § 3106 (“Unlawful removal, destruction of records: The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.”).

[11] Id.

[12] 44 U.S.C. § 3106 (“[…] In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.”).

 


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